Opposes Renewal of BM & Kayenta Lease Re Opener

Navajo Nation Resources CommitteeComments for the Record

Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010

FORGOTTEN PEOPLE

Dine' Be' Iina' na' hi! naa (Dine' Rebuilding Communities)

Don YellowmanPresident

Joe KlainVice-President

Lucy KnorrSee 'y/Treasurer

CDCP.O. Box 1661

Tuba City, AZ 86045(928) 401-1777

[email protected]://www .forgottennavajopeople.org

Via Hand Delivery

To: Navajo Nation Resources Committee

Copy: President Joe Shirley, Jr., Vice President Ben Shelly and Honorable Navajo NationCouncil Members

Re: Navajo Nation Resource Committee Hearing on coal lease re-openers withPeabody Western Coal Co., No. 14-20-060308580 and No. 14-20-0603-9910

Comments for the Official Record

From: Don Yellowman, Joe K.lain, John Benally, Leonard Benally, Glenna Begay, RenaBabbitt Lane, Caroline Tohannie, Marsha Monestersky on behalf of ForgottenPeople and their families living on or near the areas to be mined, and use the areasto be mined for religious, aesthetic and recreational purposes

Dated: August 30, 2010

Forgotten People is herewith submitting these comments as an entity composed of persons thatare adversely affected by the Navajo Nation's plan to approve Peabody Coal Company's BlackMesa and Kayenta mine lease re-opener in Navajo County, Arizona. Forgotten People issummarizing the issues to be raised herein stating the opposition of Forgotten People and peopleliving in the locality of Peabody Western Coal Company permit area to Navajo Nation ResourceCommittee approval of a lease re-opener for the Black Mesa and Kayenta mines.

1. The Forgotten People is a community-based organization that has been in existencesince 1990 under its predecessor Dine Alliance with a long history on the record of



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working on policy advocacy issues for the benefit of Dine' (traditional Navajo)communities in Arizona.

2. The Forgotten People has historically opposed Peabody Western Coal Companymining activities because of the observed adverse impacts of those mining activitieson air quality, water quality, animal and I human health, sacred sites, burial sites, andcultural and historic sites. The people are suffering effects from Peabody Coal

Company's Kayenta miningoperations.

3. Surface water sources have beenpoisoned or destroyed, people donot have adequate water to drink,are hauling their water over greatdistances, and in some areas aredrinking arsenic contaminatedwater.

4. Dine religion forbids strip miningwhich violates basic teachings inwhich the Earth is a living entitythat is being harmed. Sites thatwere the sole source of sacred and

medicinal plants have been destroyed by the mine.Black Mesa mine coal shot covering Milton Lakeand other residences in mining area I

5. Energy policies in the region are flawed because they do not take into accounthistorically proven techniques of land management and stewardship and excludedirectly affected peoples' (property owners) from decision-making processes andlegislation that constitutes a taking of their land and water resources.

6. The destruction of the land, air and water that accompanies the mining operations byPeabody Coal Company's Kayenta mine is offensive to the people's religious beliefsand directly interferes with their ability to use these lands for religious, recreationaland aesthetic purposes.

7. In considering the proposed lease re-openers, the Navajo Nation must adhere to theminimum standards for a lease re-opener required by federal agencies for permits andpermit renewals. According to OSM Regulations for Permit Renewals, 30 CFR774.15 states: The regulatory authority shall approve a complete and accurateapplication for permit renewal, unless it fmds, in writing that-The terms andconditions of the existing permit are not being satisfactorily met and in light ofForgotten People's administrative lawsuit against Peabody's Kayenta mine in thelikely event Office of Surface Mining Reclamation & Enforcement will renew thepermit.

1 Statement of Peabody Coal Company employee dated May 18,2010.



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LOCAL RESIDENTS HEALTH EFFECTS AND LACK OF ACCESS TO WATER

21. Norris Nez, Hathalie, Medicine Man: In Big Mountain, Black Mesa there are manysacred plants, sacred types of soil on the surface and these are scarce and difficult togather and search for because of Peabody and these places have been disturbed andthe landscape has been destroyed, lost forever. In Black Mesa area there were manykey sites where offerings were given and Peabody has destroyed these sites. As Dinewe are connected close to the land and our spiritual connection and ties to the land arespiritually tied to where the sacred sites are located and where we are surrounded.That is why the prayers or ceremonies that were conducted are lost. It is because theland is destroyed. Peabody's desecration of the land has devastated our ability to healthrough ceremony and relocation has denied us new generations of Medicine Menthat would have continued to practice traditional ways, and give us a way to share ourknowledge with younger people so we can carry on the traditional Dine ways. Thisknowledge and continuation has been severely impacted. We have lost those healersand we have lost our solid foundation with the Holy People. 2

22. John Benally: I am seeing green on the ground underneath trees from acid snow anddry snow that has no moisture in it. Sometimes I smell the blasts. I use snow meltfor drinking water and have observed red dust from coal mining operations, felt theearth shake from Peabody blasting and growing frequency of underground fires inShonto and other locations due to drawdown of our sole source drinking wateraquifer. Sinkholes are forming in Black Mesa and we are seeing cracked foundationsin Relocation and Navajo Housing Authority homes and Coal Mine Canyon ChapterHouse. 3

23. Leonard Benally and Marlene Horseherder: Last winter on 2 occasions weexperienced acid snow. The snow on the ground under trees turned green.

24. John Benally, Leonard Benally, Marlene Horseherder, Rena Babbitt Lane, JerryLane, Zena Lane, Caroline Tohannie: Last winter we experienced dry snow thathas no moisture in it.

25. Rena Babbitt Lane, Jerry Lane, Zena Lane, Caroline Tohannie: We areexperiencing illnesses in our old and young sheep-asthma and a shaking disease.

26. Kee Russell and Kee Russell, Sr.: We are all concerned about water quality. We getwater by N-14 and the Peabody Coal Company public water supply by the formerpublic coal pile but we do not trust the water. Most of us haul drinking water from thestore to use. My father hauls water everyday for 8 children, 21 grandchildren. He isbuying water at the store for drinking. Jimmy Little doesn't trust the water and filters

2 Declaration of Norris Nez, Hathalie Stating Facts on Information and Belief, Answer to Interrogatory to OSM,12/9/09

3 Declaration of John Benally, Big Mountain, Black Mesa resident to OSM, 5/7110.



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his water on the faucet. He has fainted and we are concerned because some of ourchildren, even our baby has respiratory problems.

27. Jimmy Manson: I was diagnosed at the hospital with Black Lung. I need a visitingnurse and transport to the medical clinic. I need running water and electricity so I canhave an indoor bathroom and electricity to run breathing equipment that I need. Weare living here near the mine but have no electricity. Sometimes I cannot get someoneto haul water for me and this is especially hard in the winter when the dirt roads areimpassable. My wife and I live here alone and are scared that we cannot even get outto the hospital because of the bad roads. Forgotten People learned recently, Jimmydied.

28. Alice Tso: My husband Roy Tso died of Black Lung. When my husband, Roy Tsowas alive even though he had health problems he hauled water for drinking. I cannoteven do this. I have to haul drinking water from the public water stand. That is too faraway. I am helpless.

29. Simon Crank: I have Black Lung and I am told I will be using oxygen tanks soon.

30. Milton Lake: Peabody destroyed Sagebrush and 3 other drinking water sources weused. They never even replaced the water supplies we lost.

31. Calvin Etsitty: There is water in a well near here, within our family residence. Weasked Peabody if they could turn it on for our livestock every day. Almost all of ourgrazing area was taken by the mine, but they won't even give us water. Our pond wasdestroyed. We want water by our house for our livestock and our own use. A drinkingwater source for 12 extended families was destroyed and needs to be replaced. Thewindmill by the Lakes was destroyed by Peabody and needs to be replaced. Thepublic water stand is not good for us. We want our own windmill back like we had.The public water stand does not help our animals. We never got electricity or water asPeabody promised. We are denied even as we see Peabody using our water to waterdown the roads and we and our livestock cannot use it. Forgotten People learnedrecently, Calvin died.

32. Glenna Begay: In my customary use area, Peabody destroyed sacred Sagebrush andSweetwater, drinking water sources planted by Medicine people. The desecration ismarked by Archeologists stakes. In the summer of 1998, Peabody installed asediment pond on my land for contaminated runoff a few yards away from sacredSagebrush Spring planted there by Medicine people. This spring contains a year-round drinking water resource. Bitter Spring in the area, containing a source of waterfor our animals was bulldozed and Peabody installed a water pump there for theslurry line and a dam to flush the water pipeline. Living here, watching the mining, Iam observing them. Anything in their way they will destroy. I am concerned becausethey are coming towards me and they will do what they did across from here. I don't



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want this. We have made many offerings throughout this area; a lot of Medicine Mendid ceremonials. 4

33. Alice and Kee Z. Begay: We live close to the mine but we have no running water orelectricity. Peabody took away our spring and built a water impoundment dam wherewe used to get water for our livestock. It is not fenced in and is contaminated fromflushing out the coal slurry pipeline. Our other main source of water, a windmillneeded repair then was dismantled. We have not even a drop of water to drink forourselves and our livestock.

34. Mazzie K. Begay: For over 20 years I have lived a few yards away from a water wellthat was capped off by the BIA in Cactus Valley. It was under Navajo authority untilit became the Joint Use Area. Then in 1980's the Bureau of Indian Affairs starteddismantling, bulldozing, fencing off water resources. We have to drive 30 miles eachway just to haul water. I have a lot of headaches, tummy ache, stress relatedconfusion. I worry because I don't know what will happen. 5

PEABODY LEADS THE US IN VIOLATIONS

35. In light of the history of violations and the fact Peabody leads the US in violations,Forgotten People urges the Navajo Nation to impose stringent regulations andstandards to protect our land and water resources and work with US EPA to establishwater quality standards for mining water releases into rivers, steams and washes.

36. Peabody Energy Corp. and Consol Energy Corp. operate the two coal mines that leadthe U.S. in violations, with more than double the total of Massey Energy Co.'soperation where 29 people were killed this month. The mines controlled by Peabody,the largest U.S. coal producer, and Consol have collected more than 1,300 citationssince January 2009, according to the U.S. Labor Department's Mine Safety andHealth Administration. Massey's Upper Big Branch mine, site of the worst minedisaster in 40 years, had 639 violations. Peabody's Air Quality No.1 coal mine inKnox County, Indiana, tops the U.S. in citations, with 1,419. The company'soperation in Saline County, Illinois, has accumulated 1,217 citations, according toMSHAdata.

37. Consol's McElroy mine in Marshall County, West Virginia, has collected 1,380citations. In October MSHA notified Peabody of "a potential pattern of violations" atthe mine, a step that can lead to more scrutiny. The company reduced the number ofsignificant and substantial violations and was notified that a pattern of violations nolonger exists, according to a March 15 letter from MSHA. 6

4 Re: Stakeholders views for the Study on Human Rights Obligations related to Equitable Access to SafeDrinking Water and Sanitation, www.ohchr.org, April 15, 20075 Personal declarations made to Marsha Monestersky, 5/15/106 Peabody, Consol Coal Mines Lead u.s. in Violations (Update2 ...Apr 16,2010 ... Peabody, Consol Coal Mines Lead U.S. in Violations (Update2) ... Drummond Co., a closelyheld coal company, leads the nation in the amount ...www.businessweek.coml .../peabody-consol-coal-mines-Iead-u-s-in-violations-updatel-.html



38. President Barack Obama ordered the crackdown on safety violations nationwide aftersaying the explosion at Massey's Upper Big Branch Mine in West Virginia wastriggered by failures of management and government oversight. Massey operatesnine mines on the government list, the most of any operator. Peabody Energy Corp.,which operates with Consol Energy Corp. has two coal mines that lead the U.S. inviolations and operates three mines on the government's list. 7

39. Helen Dunn's appeal of the district court's dismissal of her amended complaintalleging wrongful death of her husband Darrell Dunn was dismissed because it wasdetermined she received benefits from Darrell's employer under the Illinois workers'compensation statute. What is of great importance, is the wrongful death occurred asa result of his work in an unsafe underground coal mine under a roof that PeabodyCoal Company knew to be dangerous as a result of its being inadequately supported.At the time Darrell Dunn was working in the mine, the roof collapsed causing rocksand debris to fall upon him and causing his fatal injuries and death two days later. 8

40. House Dems Call on Coal Industry to Quit Opposing Safety Reforms. Spotinspections just completed by the Mine Safety and Health Administration at 57 coalmines found 1436 violations and resulted in a staggering 105 closure ... 9

41. On Thursday, after a year-long investigation by the Mine Safety and HealthAdministration, Peabody Coal Company pleaded guilty in Federal District Court inCharleston, W.Va. for tampering with dust samples taken to protect miner's health.Peabody Coal Company agreed to pay a $500,000 fine, the largest ever assessed for anonfatal violation ofthe Federal Mine Safety and Health Act of 1977. 10 11

42. The federal government should take steps to ensure that underground coal operatorsdo not cheat on dust samples, a miners' safety advocate said yesterday. DavittMcAteer, director of the Occupational Safety and Health Law Center, made his

7 Massey, Peabody Coal Mines Targeted in Stepped-Up U.S. Probe ...Apr 21,2010 ... Peabody Energy Corp., which operates with Consol Energy Corp. two coal mines that lead theU.S. in violations, operates three mines on the ...www.businessweek.coml .../massey-peabody-coal-mines-targeted-in-stepped-up-u-s-probe.htmI

8 855 F2d 426 Dunn v. Peabody Coal Company IOpen JuristTwo years after the arbitrator's award, Peabody Coal Company was indicted for violations of the Federal Mine,Health and Safety Act arising out ofthe ...openjurist.org/855/£2d/426/dunn-v-peabody-coal-company9 House Dems Call on Coal Industry to Quit Opposing Safety ReformsThe Washington IndependentSpot inspections just completed by the Mine Safety and Health Administration at 57 coal mines found 1436violations and resulted in a staggering 105 closure

10 Peabody Coal Co. Pleads Guilty To Dust Sample Violations.Peabody Coal Co. pleads guilty to dust sample violations. The Associated Press. CHARLESTON, The world'slargest private- coal company was fined 500000 by ...news.google.comlnewspapers?nid= 1817&dat= 19910 120&id ...11 Peabody Coal Fined for Tampering; Firm Interfered With Dust...The Washington Post (pre-1997 Full text) - Jan 18, 1991



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~comments one day after Peabody Coal Co. pleaded guilty to three charges ofimproperly obtaining or reporting dust samples. Peabody, the largest coal operator inKentucky and the United States as a whole, was fmed the maximum of $500,000.00.12 13

43. Federal law requires coal companies to periodically measure concentrations of dust inunderground mines by issuing portable plastic devices containing a paper filter thatminers wear on their belts for an eight-hour shift. The devices, connected to a smallpump, mimic the action of a miner's lungs and are intended to be first line of defenseagainst pneumoconiosis (pronounced new-MO-conee-osis), or black lung disease, adebilitating pulmonary injury. Some 260,000 former miners suffer from the disease,according to the Department of Labor, and receive Federal medical and incomebenefits that cost the Government $1.43 billion in the fiscal year that ended Sept. 30.

44. Coal companies are responsible for issuing and collecting the filtering devices. AFederal laboratory in Pittsburgh conducts the scientific tests to determine whetherconcentrations of coal dust in a mine exceeds two milligrams per cubic meter of air,the level the Government considers hazardous. The Department of Labor has theauthority to penalize or close mines that routinely violate the law. Officials of theUnited Mine Workers of America said the guilty plea by Peabody was "gratifying,"but came as no surprise. In the late 1970's Congress investigated and conducted aseries of public hearings on fraud in the mine safety tests.

45. The union issued a step by step guide to teach its members how to check on the dustsampling techniques of their employers. Some of the previous investigations by themine safety agency originated from tips made by union members, the Governmentsaid today. We've been trying to do something about this for years," said Dr. JamesL. Weeks, an industrial hygienist who is deputy administrator of the department ofoccupational health and safety at the mine workers' union in Washington. "We havebeen told by the Government that 400 to 600 other mines are being investigated forcommitting the same practices." 14 Sources say a probe also includes possiblebribery of employees of MSHA, the federal agency that inspects coal and othermines. 15

12 Dust-Sample Faking in Mines Must End. Says Safety, Lexington Herald Leader - Jan 19, 199113 Coal Company Admits Safety Test FrauQ, New York Times - Jan 19, 1991

14 Coal Company admits Safety Test Fraud, NY Times http://www.nytimes.comlI991101l19/us/coal-company-admits-safety-test -fraud.html15 Massey, Federal Officials Investigated In Mine Blast, NPR. The sources also say the probe also includespossible bribery of employees ofMSHA, the federal agency that inspects coal and other mines and enforced ...



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NO PERMIT FOR THE RAILROAD, COAL FIRES IN THE BLACK MESA BASIN

46. The railroad used to transport coal from the Peabody mining operations in Arizonashould be permitted under SMCRA. 16

47. Peabody's Kayenta mine coal stockpiles should be lined to protect run-off ofcontaminated water into washes and stockpiles. They should conform with MSHAguidelines with regard to the steepness of grade to protect miner's safety. Coal firesin the coal seams that last for years and underground coal fires should be controlled.

48. Within the Black Mesa basin in Shonto, Arizona about 10 acres of the mountain sidewas affected by underground coal fires. Chemical emission of sulfur and otherhazardous fumes were being released into the atmosphere causing possible healthrisks and threatening the customary land use and the coal reserves. Although OSM'sefforts did cool down the coal fire temporarily, 10 years later the fire was again activeand further subsidence was once again evident. There were more than 1,000 ft. linearfeet of fire line, ranging from 40 to 60 feet. During the reclamation, the contractordiscovered four to six coal seams burning at extremely high temperatures. It required40,000 to 50,000 gallons daily to cool down the coal seams.

49. Underground coal fires are becoming more frequent and are believed to be a result ofwater drawdown. These fires may be responsible for some cracks in the foundationof the Navajo Housing Authority, Joint Use Area homes and the Coal Mine CanyonChapter House. Such impacts must be adequately considered.

ENVIRONMENTAL JUSTICE AND THE RIGHT TO PARTICIPATE

50. Forgotten People's predecessor, Dine Alliance filed the first case of environmentaljustice subsequent to passage of Executive Order (EO) 12898 on February 11, 1994.The Executive Order requires a particularized examination of the impact of mining inor near Indian Country to prevent the harm identified in the order and to assuremaximum participation by the individuals who will be affected with traditionalproperty rights that are often ignored, and seldom without a voice to protect theirtraditional lifestyles, and people's physical, psychological, mental health and wellbeing.

51. The Navajo Nation should recognize the people's right to participate in decision-making as affirmed by the Order of the Administrative Law Judge vacating OSM'sdecision to grant a life-of-mine permit stating: The Navajo Nation should considerthe health and environmental impacts of a given initiative, and inclusion of peopleaffected by it to consider impacts on indigenous lifestyles and economies, and otherdisruptions of existing indigenous property and cultural practices.

16 Declaration of Marsha Monestersky, 12/09/09 Answers to Interrogatories, Forgotten People vs. Office ofSurface Mining.


Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/27/20lO

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THEREFORE BE IT RESOLVED: Forgotten People respectfully requests the NavajoNation Resources Committee delay any decision on a lease-reopener for Peabody's Black Mesaand Kayenta mine until the new administration takes office to conduct a thorough investigationto protect the environment and people's health against adverse impacts. It is untimely for theNavajo Nation to rush to issue a lease re-opener for the Black Mesa and Kayenta mine in light ofthe fatal flaws in the leases, illegal mining on the Black Mesa mine, lack of a permit for therailroad hauling coal from the Kayenta mine to the Navajo Generating Station and lack of wastewater discharge permits. The Black Mesa mine does not have a permit to operate and the NavajoNation cannot grant under a lease re-opener what a federal judge vacated by denying the BlackMesa mine a permit to operate. The Black Mesa mine needs to be treated as an abandoned mineand Peabody should dismantle the infrastructure facilities, warehouses,co-nduct reclamation andhave a reclamation plan with bonds with regard to water impacts.

Under Navajo fundamental and traditional law there is no "lease or permit condition" that wouldavoid significant adverse impacts on the environment and people's health. Under Navajofun.damentalan.d traditional law, the .destruction or disturbance of the people's sacred lan.d andlife is not allowed.

The Navajo Nation must meet the minimum standard required under federal law. Under federallaw when permit or lease conditions cannot be identified such that the proposed activities can bemade protective of the environment and public health and compliant with applicable law, thenthe only legal alternative is to decide not to make any decision.

Forgotten People believes in the participation of directly affected people in decision-makingprocesses and the people's right to say Peabody lease re-opener Dooda 'No' to protect our sacredland, water resources and iina. (life). Especially in light of recent coal mining tragedies, the factPeabody is the worst violator in the US, and BP's oil spill in the Gulf. The only tragedy worsethan what's happening would be if our Nation fails to learn anything constructive from thesedisasters. Please confirm receipt of Forgotten People's comments for the record opposingPeabody's Black Mesa and Kayenta mine lease re-opener.

Yours sincerely,

~~~President

(Vh~ ;~:mBenany

Board of Director

~£1t~Marsha MonesterskyProgram Director

Carl s DealPublic Relations Coordinator

On behalf of Forgotten People

Opposes Renewal of BM & Kayenta Lease Re Opener

Documents

coal lease reopeners

coal shot

water resources

navajo county

black mesa area

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sacred sites

behalf of forgotten